Monday, July 28, 2008

Daily Cal: Petitioners' Appeals to Athletic Center Ruling Will Face Challenges in Overturning Judge's Decision

By Jacqueline Johnston

Though two of the parties involved in the lawsuits over construction of a student athletic center near UC Berkeley's Memorial Stadium filed appeals of a judge's ruling last week, they face an uphill battle in overturning the decision.  If the appealing petitioners, which include Panoramic Hill Association and the California Oak Foundation, are to succeed in preventing the center from ever being built at the current prospective site of an oak grove near Memorial Stadium, they will have to prove a number of the conclusions Alameda County Superior Court Judge Barbara J. Miller arrived at in her rulings were faulty.  Many of the points the petitioners raise in the brief they filed in state appellate court last Thursday would most likely only serve to stall the university in building the athletic center, but not prevent it entirely.  In order to prevent the center from ever being built at the current site, appeals court judges would have to overturn Miller's decision that the athletic center does not constitute an alteration or an addition to Memorial Stadium. Additionally, the petitioners would have to prove that the value of the stadium is less than double the value of the center. The petitioners have said that due to depreciation, they believe the stadium is worth much less than the $600 million the university says it is worth.

The petitioners also claimed in the brief that the seismic surveys of the site are insufficient. Further geological studies of the site would have to support their claim that it is unsafe to build the center there.  In their brief, the appellants argued the university should not be able to build the athletic center without taking into account the seismic condition of Memorial Stadium.  They said because the next phases of the stadium project involve retrofitting the stadium itself, the university should be required to place a value on both the stadium and the prospective upgrades before building the athletic center.  Miller stated explicitly in her June 18 ruling that she did not believe the university needs to value the stadium before building the center.  The possibility of shouldering a bond during the appeals process could also make it difficult for the petitioners to go forward with the appeal.  During a court hearing two weeks ago, the university requested that Miller impose a $1.5 million per month bond on the petitioners during the appeals process in the event that the appeals court judges impose another injunction. The university requested this on the basis that delay of the construction of the stadium costs them about $1.5 million each month in security fees and rising construction costs.

Though Miller did not grant the bond, which would only apply if there is another injunction, an appeals court could.  The injunction that prevented the university from beginning construction during the lawsuit has been extended until Aug. 13 to give the appeals court time to decide whether an injunction should remain during the appeals process.  In their brief to the appeals court, the petitioners requested that the court not post the bond or impose only a small bond, saying they should not be required to since they believe their case serves the public interest.  A $1.5-million-per-month bond could make the appeals process difficult or even impossible for the petitioners. Stephen Volker, the attorney representing the California Oak Foundation, said during the hearing two weeks ago that imposing a bond of that size would "slam the courthouse door in (the petitioners') faces."

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